Hobby Lobby case: Justices skeptical of White House position

The Supreme Court on Tuesday expressed skepticism of the legality of the Obama administration’s refusal to accommodate for-profit companies’ religious objections to the Obamacare requirement that most firms provide contraception in their employee health plans.

A majority of the justices seemed particularly doubtful of one of the administration’s central legal claims: the assertion that for-profit companies have no religious rights under federal law.

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During more than 90 minutes of arguments, several justices repeatedly questioned why the administration couldn’t give for-profit companies with religious objections the same kind of accommodation that has been offered to religious nonprofits. Those organizations have been offered the chance to opt-out of contraceptive coverage and have it provided through their insurance company or administrator.

As usual, Justice Anthony Kennedy appeared to hold the swing vote overall, though it seemed likely the court would rule against the administration on the initial question of whether corporations have at least some religious-freedom protections. The Justice Department has argued those rights belong only to individuals.

Kennedy expressed concern over how allowing an exemption to the contraceptive requirement would impact the broader law and employees who receive the coverage. However, he also raised the point that the contraception provision is included in the mandatory coverage list because of a regulation — not because of what Congress wrote.

“Under your view, a for-profit corporation…could be forced in principle to pay for abortions?” he asked Solicitor General Donald Verrilli. “Your reasoning would permit that.”

Chief Justice John Roberts noted that the plaintiffs in the two cases before the court view certain contraceptive methods as causing abortion, even though physicians and scientists disagree.

Isn’t this about “these four methods of contraception that they believe provide abortions?” Roberts said. “I thought that’s what we had before us.”

Verrilli said the government “respects” the sincerity of the company owners’ belief that Plan B, Ella and intrauterine devices can cause an abortion but carefully said that state and federal law does not classify them that way.

“I do think that is what makes this a difficult case, I agree,” the solicitor general said. He noted that there are already accommodations to ensure private employers don’t have to pay for abortions.

Tuesday’s challenge to the Affordable Care Act involves national chain store Hobby Lobby, which is owned by evangelical Christians, and Conestoga Wood Specialties, which is owned by Mennonites. Those owners say that providing contraception would force them violate strongly held religious beliefs against the use of certain contraceptives.

“Who says it? The majority of shareholders? The corporate officers?” she asked. “Let’s assume just a business that sells 5 percent of religious books, doesn’t play Christmas music… works on Sunday, does nothing else religiously.”

Justice Elena Kagan also vigorously defended the coverage rule, arguing that Hobby Lobby and Conestoga were not being forced to provide insurance coverage and could simply choose not to by paying $2,000 per year per employee—an amount far lower than the cost of health insurance.

But she later voiced some concerns about the breadth of the government’s argument that for-profit companies lacked religious-freedom rights.